E. Dharama Rao, J.
1. As the issue involved in all these writ petitions is one and the same, they are being disposed of by this common judgment.
2. W.P. Nos. 511 and 539 of 2001 were filed by the Mini Taxi Owners' & Drivers Association, while W.P. No. 676 of 2001 was filed by Sri. K. Yadagiri, questioning the impugned notification bearing No. Tr. T4/211/2001 dated 15-1-2001 issued by the Commissioner of Police, Hyderabad under the City Police Act, 1348 Fasli being arbitrary, irrational and outside the scope and ambit of Section 21 of the Hyderabad City Police Act, by which the Commissioner of Police has notified for information of the public in general and the 7 seater auto operators in particular, that the following restrictions are imposed on the movement of the 7 seater auto rickshaws for the maintenance of safe and free flow of traffic, prevention of danger, obstruction and inconvenience to the public, that the movement of 7 seater auto rickshaws is prohibited in the twin cities of Hyderabad and Secunderabad for all the 24 hours and they should not enter the City beyond the following areas :
(1) Lunger House (2) Toli chowki (3) Moghal Ka Nala (4) Tadban (Bangalore Road, NH-7, (5) Raidurg Centre, (6) Chandrayangutta X Roads, (7) Rajiv Gandhi Statue, Dilsukh Nagar (8) Habsiguda X Roads, (9) Lothkunta, (10) Erragadda X Roads (11) Old Airport Bowenpally/Bowenpally Checkpost, (12) Bollaram X Roads and (13) TV Station Ramanthapur. It further reads that the notification will not affect carriers involved in essential services declared by the Government from time to time and the notification will come into force with immediate (effect) from 16-1-2001. The petitioners also sought a direction to declare the same as unenforceable and be pleased to pass such other orders which are deemed fit and proper in the circumstances of the case.
3. The petitioner No. 1 is the Union of Seven Seater Auto Rickshaw, which are popularly known as Mini-Door Auto Rickshaws, manufactured by M/s. Bajaj Tempo Limited, Pune and some of them are also manufactured by M/s. Scooters India Limited and also by M/s. Sunku Diesel Limited, but majority of the vehicles used in the city are of Bajaj Tempo make. It is submitted that some of the petitioners are owners of the said vehicles having valid registration and having paid taxes under the Motor Vehicles Taxation Act to the satisfaction of the Road Transport Authority and the Road Transport Authority has granted fitness certificates to all the vehicles and then only the Registration is effected. It is also submitted that out of a total vehicle population of about ten lakhs, in Hyderabad city, the seven seater auto rickshaws are hardly about 2000 and 3 + 1 seater auto rickshaw are more than 75000. The petitioners have filed xerox copies of the RC Book, Xerox copy of the permit, issued by the Secretary, Transport Authority, Hyderabad, granting permit for the vehicles to ply on all motorable routes in the State of Andhra Pradesh, except prohibited areas. It is further submitted that the Transport Commissioner, Hyderabad, issued Circular No. 9456/D1/96 dated 25-6-1996 to all the Registering Authorities of the State giving specifications of the vehicles and requesting them to register the above model vehicles as 'Motor Cab'. It is emphasized by the petitioners that the above circular, issued by the Commissioner, Transport, shows the roadworthiness and confirmation of the vehicles and are being plied throughout the country including the city of Hyderabad for the last several years. The petitioners have also filed xerox copy of the certificate issued by the Automobile Research Association of India dated 1-12-1997, stating that the vehicles conform to the provisions of the Motor Vehicles Act as well as the Central Motor Vehicles Rules with regard to the vehicles manufactured by M/s. Bajaj Tempo Limited, which is described as Tempo Three Wheeler Mini Door (6 + D). Thus, after satisfying with the roadworthiness and compliance of all requirements under the Motor Vehicles Act, the Transport Commissioner of Andhra Pradesh issued circular Dated 7-2-1996 to all the Registering Authority in the State to register the above vehicles as Motor Cab.
4. It is further stated that the individual vehicle owners and their family members are completely dependant on plying of the vehicles as a source of livelihood and the owners of the vehicles are carrying on their profession by using the said vehicle as passenger vehicle. The Commissioner of Police, Hyderabad, had issued the impugned notification dated 15-1-2001 prohibiting the movements of the seven seater auto rickshaws throughout the twin cities of Hyderabad and Secunderabad round the clock with effect from 16-1-2001, all of sudden completely prohibiting the use of the vehicles within the twin cities, resulting in immense hardship and prejudice as well as complete loss of livelihood to the petitioners and also affected the right to carry on lawful profession or trade and as such the petitioners are compelled to approach this Honourable Court under Article 226 of the Constitution of India.
5. It is also submitted that this impugned notification issued by the Commissioner of Police Hyderabad, was purported to be issued in exercise of the powers under Section 21(1)(b) of the Hyderabad City Police Act, 1348 Fasli (for brevity the Act), that this provision of the Act merely empowers the Commissioner of Police to regulate the traffic on all accounts in public street or public place but the Commissioner of Police has completely prohibited the use of the vehicles under the garb of regulating the traffic and therefore, the said notification is ultra vires the powers of Commissioner of Police. It is also contended that regulating of traffic cannot be equated to be a total prohibition of traffic. The regulation envisaged under the Act cannot, in law, be constructed to mean a complete prohibition as is understood by the Commissioner of Police. It is further contended that the word "regulation" used in the above section clearly establishes that it never intended to mean synonymous with prohibition. It is also further contended that the Regional Transport Authority who has certified the roadworthiness of the vehicles and granted permits to ply the vehicles throughout the State amply establishes that the said vehicles cannot be said to be unsafe or would cause-danger or obstruction on inconvenience to public and on the contrary the vehicles have been serving the general public for their needs and, thus, the impugned notification, therefore, runs counter to the certifications of the R.T.A. as well as the Technical approvals of the vehicles at all levels throughout the country. It is also contended that out of the approximate ten lakh vehicle population in the city, the vehicles of this nature are hardly about 2000 and it cannot be said that the Commissioner of Police has properly regulated the use of the said vehicles and by totally bringing prohibition on the use of this type of vehicles, the Commissioner of Police, has exceeded his powers under the Act and the inability of the Commissioner of Police to manage traffic cannot be equated to total prohibition of a set of vehicles which are otherwise lawfully plied throughout the State. It is also submitted that most of the petitioners have purchased the vehicles by obtaining loans and the only source of livelihood and earning for most of the petitioners is the income generated from such use of the vehicles, but on account of the arbitrary and sudden prohibition imposed on them, not only their right to carry on the trade and profession under Article 19(1)(g) is affected but their right to livelihood under Article 21 is also seriously affected apart from serious inconvenience to the general public. It is further contended that the impugned notification has been issued without even consulting any of the representative Unions of the petitioners and without conducting any proper survey and without giving any opportunity of hearing to any of the vehicles owners in respect of the proposed action, that the impugned action is so drastic and prohibiting most of the vehicle owners who are residing within the city from bringing the vehicles to their home nor for carrying out any minor or major repairs in the city and even a vehicle newly purchased cannot reach the Registering Authority or an old vehicle to get a fitness certificate and even if the vehicle is to be taken out from the City, for plying at the outskirts is also prohibited.
6. From the above it is clear that the imposition of total prohibition on the use of the vehicles, is nothing but non-application of mind and, therefore, liable to be set aside. It is also submitted that the impugned action has been taken by the Commissioner of Police at the instance of three seater auto rickshaw as well as the APSRTC for their own personal economic benefits.
7. For the above stated reasons, it is prayed to set aside the impugned notification dated 15-1-2001 issued by the Commissioner of Police, Hyderabad, as ultra vires his powers under Section 21 of the Act.
8. In reply to the above averments and contentions raised by the petitioners, the Commissioner of Police, Hyderabad, has filed his counter affidavit stating that in the twin cities of Hyderabad and Secunderabad there are about 10,58,000 motor vehicles plying of which about 57000 are the three seater auto rickshaw and the Regional Transport Authority registered some vehicles as mini cabs which have a seating capacity of 7, that gradually their number increased and these vehicles started operating within twin cities. The more of operation of these vehicles has resulted in impending the flow of traffic and a large number of accidents were causing fatal injuries. It is further submitted that these carriages have been licensed as contract carriages and were systematically operating like ordinary stage carriage, picking up passengers and dropping them at different places along the chosen routes and this action of the petitioners is illegal. In connection with the accident, which occurred, a large number of cases came to be registered and drivers were arrested, that during the year 2000 alone, there were 37 accidents involving 18 deaths and serious injuries to 44 persons, resulting in public protest and the problem was highlighted in the media. Therefore, on examination of the whole problem from various angles, the Commissioner was satisfied on the following grounds :
(a) a number of accidents, which have occurred with loss of human life and injury is totally disproportionate to the number of mini cabs plying and warrants the conclusion that these vehicles are inherently unstable and constitute a serious risk to the safety of persons using the streets and public places.
(b) The available information clearly discloses that these autos, though intended to be only contract carriages, are operating factually as stage carriages in violation of the law and the terms of their certificate of registration. This type of operation is interrupting the flow of traffic, because of parking of these vehicles at different bus junctions for indefinite periods. Their system of operation was causing unnecessary inconvenience to the public and users of other motor vehicles. The constituted a menace to pedestrians.
Therefore, the Commissioner passed the impugned order to prevent, danger, inconvenience and obstruction to the general public, in bona fide exercise of his power under Section 21 (1)(b) of the Act.
9. The Commissioner of Police has further stated that the said provision of the Act is a vital provision introduced to ensure public safety and avoid inconvenience to the public. The population of the twin cities has increased from about 13 lakhs to about 60 lakhs during the year 1960 to 2000 as per 1961 and 1991 census, that all over the country, more and more people are migrating to cities and the motor vehicles increased during the single year 1999-2000 from 9,52,019 to 10,21,904 and there are frequent traffic congestions all over the city and in this circumstances, even a single element, which contributes to this situation, requires to be regulated in public interest. It is also stated that a relatively small segment like that of the petitioners is causing serious problem. Although the RTA has granted them certificates of registration, the Commissioner of Police has reason to doubt the safety of travel in such vehicles in the light of actual experience on the roads and he was advised that Section 21 (1) (b) of the Act not merely grants permission to regulate but imposes a duty on the concerned Police Oficials to ensure the safety and convenience of the public using the streets of twin cities and that power to regulate includes power to prohibit, that the impugned notification merely prohibits the plying of such vehicles within boundaries of the twin cities. It is also submitted that it is well recognized fact that there is traffic congestion all over the city and, therefore, the impugned order is just and tenable and within the scope of Section 21(1)(b) of the Act. It is further submitted by the Commissioner that the impugned order does not stop the petitioner from plying the vehicles, it only restricts the area of operation in the interest of general public and the criteria that some of the vehicles have been purchased with money borrowed from the Government Agencies or private institutions has no relevance, that the vehicles had only approval to ply as contract carriage, but they are being blatantly plied as stage carriers, which is evident from the fact that their operations have encroached into the legitimate spheres of the RTC and diminished its revenue on city routes to an appreciable extent.
10. It is next submitted that there was appreciation by the general public for the operation of these carriage is not correct, that the allegation made against the APSRTC, SETWIN and the three seater autos are not supported by record and were deliberately exaggerated and no details have been furnished to justify the allegation. It is also submitted that the said vehicles are not owned by the drivers and they are not kept at the residences of the drivers and even if it is assumed that there is some inconvenience, it has to be weighed against the public interest and safety. With regard to the roadworthiness of the vehicles, it can only be established after actual use on the road for a reasonable time, the certificate issued by the other authorities for purposes of granting permits, etc. have been issued on the basis of the specifications of the vehicle and this do not necessarily establish that when the vehicles are actually put on the road and are being plied and functioning satisfactorily. It is also stated that the nature of the use of the seven seater vehicles and the normal condition of roads, there is a reason to believe that these vehicles are not suitable for plying with seven persons.
11. Insofar as the contention that the Commissioner of Police has arbitrarily exercised his powers in issuing the impugned notification is concerned, it is stated that there is no arbitrariness in exercise of the powers vested with the Commissioner under S.21(1)(b) of the Act and the doctrine of ultra vires has no relevance to the present situation. It is also submitted that regulation, in an appropriate case and as used in Section 21 (1)(b) of the Act, comprehends prohibition, that the impugned notification does not totally prohibit the plying of these vehicles and the ban is only confined to the city limits specified in the order, that the exercise of powers under the Act is different from exercise of power under the Motor Vehicles Act, each has its own separate domains and therefore, is no question of the impugned notification running contra to the certificate of the R.T. A. that the impugned notification has been issued to protect the safety of the public and to avoid inconvenience to them and, therefore, there is no question of exceeding powers in the instant case. It is further submitted that the notification does not offend Article 19(1)(g) of the Constitution. The restriction imposed is a reasonable restriction having regard to the alarming situation created by the indiscriminate plying of the seven seater auto rickshaws. There is no violation of any constitution provisions and Article 21 has absolutely no connection with the impugned order. It is also contended that it is not the drivers of the auto rickshaw alone who have a right to life, even the pedestrians and other users of the roads in the twin cities who have the same right to live and much more necessity for protection and the first petitioner, an Association, has no right under Article 19 of the Constitution. It is also submitted that the impugned notification has been passed after enquiry and on the basis of the number of reports from all the zones in the city, the residence of the owners and drivers of the vehicles is irrelevant for the purpose of a decision as to whether the vehicle should be allowed to ply within the twin cities and if any inconvenience is caused in individual cases, it is always open to the person concerned to approach the authorities for relief viz. for permission to attend the office of the Registering Authority or for major repairs, which cannot be attended to outside the twin cities and permission can be granted subject to suitable conditions in such cases. Therefore, for the reasons stated above, the impugned order passed by the Commissioner of Police is sustainable in law.
12. In the backdrop of the above stated facts, Sri E. Manohar, the learned Senior Counsel, appearing on behalf of the petitioners in Writ Petition No. 511 of 2001, attacked the impugned notification mainly on three grounds, firstly that the Commissioner of Police has no power to pass the impugned notification, secondly there was procedural irregularity in passing the impugned order and thirdly the Commissioner of Police has not applied his mind in passing the impugned notification. To substantiate the said contentions, the learned Senior Counsel has submitted that Section 21 of the Act empowers the Commissioner to make Rules not inconsistent with the Act and such Rules in case of Clause s (b) and (c), be subject to the control of the Government and with regard to the remaining clauses, sanction of the Government shall be obtained prior to the enforcement of Rules. He further submitted Section 21 of the Act does not confer any power to prohibit any vehicle from plying within twin cities of Hyderabad and Secunderabad and the Legislature in its wisdom under Clause (b) of Section 21 has empowered the Commissioner of Police to regulate traffic of all kinds, in public street or public place and regulating the use of streets and public places by persons walking, driving, cycling or accompanying or leading cattle, with a view to prevent danger, inconvenience or obstruction to the public and Clause (c) thereof directs the Commissioner of Police to regulate the conditions under which vehicles may be parked in public streets and public places and the use of public street as temporary halting places for cattle and vehicles. Clause (f) of Section 21 of the Act empowers the Commissioner of Police, where it is likely to cause inconvenience, delay, danger or damage to the residences or the persons passing in the vicinity, in regulating or prohibiting the keeping of a place of public amusement or palce of public entertainment; the playing of music in public street or public places, the using of a loud-speaker in any public place, or places of public entertainment; the illumination in public street, or public place, or on any building adjacent to the public street, by persons other than Government or Municipal Officers authorised in this behalf, the carrying through public street or public places, gun powder or other explosive substances and blasting. In support of his contention, reliance is placed on the decision of the Supreme Court in Himatlal K. Shah v. Commr. of Police, Ahmedabad .
Therefore, the notification issued by the Commissioner of Police on 15-1-2001 exercising powers under Section 21 (1) (b) of the Act prohibiting the movement of the Motor Cabs in the twin cities of Hyderabad is contrary to the provisions of the Act and the Legislature in its wisdom has authorised the Commissioner to regulate the traffic, basing upon the exigencies of the situation. Therefore, the Commissioner of Police, under the impression that the word "regulate" is synonymous of the word "prohibit" has erroneously exercised the power and passed the order prohibiting Motor Cabs from plying in the twin cities of Hyderabad and Secunderabad and, therefore, it is offending Article 19(1)(g) of the Constitution of India.
13. The learned Senior Counsel further contended that when Section 21 mandates the Commissioner of Police to make Rules, not inconsistent with the Act, in respect of Clause (b) in regulating the traffic and Clause (c) in regulating the conditions of parking of the vehicle from the date of enactment of the Act and in the absence of framing of any Rules from time to time, as contemplated under the Act by the Commissioner of Police, he has no guidance how to exercise the above said powers. The learned Senior Counsel further submitted that when any order is passed in exercise of the above said Section, it has to be notified under Section 85 of the Act; that means that the notification required to be published under the Act, shall be in writing and shall be published by affixing in any conspicuous place in the locality where it is intended to be published, or by proclaiming the same with beat of drum, or by advertising the same in any local newspaper or by any other means which the Commissioner of Police, Hyderabad, may think fit or by any two or more of the aforesaid means as may be suitable. Therefore, by not publishing the impugned order in the Official Gazette, as contemplated under Section 85 of the Act, the Commissioner of Police has committed a produral irregularity in implementing the order, hence liable to be set aside.
14. It is further submitted by the learned Senior Counsel that the Commissioner has not considered the relevant material subject to his satisfaction to come to a conclusion that the movement of the Motor Cabs is causing any danger, inconvenience or obstruction to the public and causing loss to the income of the APSRTC and at their behest, the impugned order was made and that the Commissioner of Police is not the authority, or an Expert in the Motor Vehicle field to give his opinion with regard to roadworthiness of the seven seater Mini Door Motor cabs which are not stable to be used on the road of twin cities of Hyderabad and Secunderabad in the interest of public. The authority constituted by the Central Government under the Act viz. Automobile Research Association of India, Pune, has already given the certificate that the Mini Door Motor Cabs with three wheels are stable vehicles and as per that certificate, the vehicles were manufactured by different companies, including Bajaj Tempo Limited.
15. The learned Senior Counsel further contended that before initiating the impugned action, the Commissioner of Police has not gathered any public opinion, further the impuned order is not a speaking order and by virtue of it, the fundamental rights guaranteed under Article 19 of the Constitution of India to pursue any trade or business is restricted, inasmuch as when the petitioners intends to do their trade or business within the jurisdiction of twin cities of Hyderabad and Secunderabad, the movement of their Motor Cabs is prohibited and the prohibition imposed is not a reasonable restriction. Therefore, the order is liable to be set aside as it is offending Article 19(1)(g) of the Constitution of India.
16. Sri. Y. Jagan Mohan and Sri V. Raghunath, the learned counsel appearing on behalf of the petitioners in Writ Petition Nos. 539 and 676 of 2001, respectively, have further submitted that by virtue of the impugned proceedings, the petitioners' vehicles are prohibited to enter into the twin cities of Hyderabad and Secunderabad, while allowing the other vehicles like four seater (3 + 1) auto rickshaws, is nothing but showing discrimination, which impugned action of the Commissioner of Police is offending Article 14 and also affect the right to life guaranteed under Article 21 of the Constitution of India.
17. In reply to the above contentions raised by the learned counsel for the petitioners, Sri. T. Anantha Babu, the learned Advocate General, while reiterating what has been stated in the counter-affidavit, submitted that Section 21 of the Act confers significant powers on the Commissioner of Police and also indicates certain restrictions of the exercise of powers. Insofar as Clause s (b) and (c) are concerned, the exercise of power is subject to the control of the Government and with regard to the remaining clauses, prior sanction of the Government is necessary. In the instant case, impugned proceedings did not require prior sanction of the Government and it was lawfully issued under Section 21 (1) (b) of the Act. It is also submitted that the statute does not prescribe any particular format for the Rule whether it was called Rules, Regulation, Order or Notification, the nomenclature is not significant. What is relevant is only the existence of power. In the instant case, power has been exercised for a proper and valid reason and there can be no legitimate complaint against the same. Insofar as the publication in the gazette is concerned, it. is submitted that the said Sub-section (2) is not applicable to the Rules made under Clause s (b) and (c) of Sub-section (1), as a separate safeguard has been introduced so far as these Rules are concerned by laying down that these powers are subject to the control of the Government. It is also submitted that it is well settled law that all the provisions of a statute should be read in harmony with each other. The requirements in Rule (2) cannot be made applicable to the proceedings issued under Clause s (b) and (c), that assuming without conceding that Sub-section (2) is also applicable to the impugned proceedings, it is stated that the same has been published in Andhra Pradesh Gazette Dated 1st February, 2001, that the publication of the notification is to make known the content of the order to the general public including affected persons. It is submitted that wide publicity has been given in the newspapers and all the affected persons have been informed in this fashion. He further submitted that in the twin cities of Hyderabad and Secunderabad, about 10,58,000 motor vehicles are plying of them, about 57000 are the three seater auto rickshaws; that during the year 2000 alone, there were 37 accidents involving 18 deaths and injuries to 44 persons by virtue of the movement of these motor cabs and there is abnormal growth of movement of these mini door motor cabs when compared to the previous years.
18. The learned Advocate General has placed reliance on Section 82 of the Act; which says that no Rule, Order, Direction, Adjudication, Inquiry or Notification made under any Rules made under the Act, or which may be deemed to be in conformity to the same shall be deemed illegal, void, invalid or insufficient by reason of not being in the prescribed form or any defect in the publication or any irregularity of procedure. It is submitted that in the circumstances, no challenge can be launched against the validity of the impugned proceedings on the ground of non-conformity with Section 85 or otherwise. He further submitted that the number of seven seater Motor Cabs regularly plying within the city limits has grown from one vehicle in 1997 to 2,676 vehicle by 16th January, 2001. The Commissioner of Police has given the date which indicates the rapid growth of the number of seven seater Motor cabs registered and the number of cases booked for violation of the law against the Motor Cabs.
Year Vehicles Cases
1997 1 0
1998 30 2
1999 630 250
2000 1639 2042
2001 376 376
Total 2676 2842
19. He further submitted that the seven seater motor cabs owners are entitled to ply in the entire Andhra Pradesh, though the movement of the said vehicles is prohibited in the twin cities of Hyderabad and Secunderabad, they can as well ply these motor cabs in the other parts of the State. Therefore, it cannot be said that the profession and trade of the petitioners is affected. In reply to the contention of the petitioners that they have purchased the said vehicles obtaining the loan from financial institutions is concerned, it is submitted that the petitioners are permitted to ply their vehicles outskirts of the twin cities of Hyderabad and Secunderabad and they can as well ply their vehicles and discharge the loan amounts out of their earnings. It is also submitted that the petitioners cannot invoke the provisions of Article 14 of the Constitution, on the ground that their motor cabs were prohibited from plying in the streets of the twin cities whereas the other vehicles like three seater autos are permitted to ply, it is submitted that having regard to the seriousness of the situation involving the seven seater autos in several accidents, the Commissioner of Police has taken the above decision, which cannot be said to be an irrational classification among equals and an arbitrary action. The learned Advocate General has also tried his best to substantiate the impugned proceedings on the theory of reasonable restriction, social justice and priority of public interest over private interest.
20. To appreciate the contentions raised by the petitioners, I have gone through the entire records placed before me and it appears to me that the motivation for passing the impugned order prohibiting the seven seater motor cabs is occurrence of an accident on 22-6-2000 at about 2-30 p.m. on the tank bund road, Hyderabad, wherein four persons died on the spot and five persons sustained serious and grievous injuries when one of the tyres of over loaded seven seater motor cab carrying 12 passengers, bound for Secunderabad from Mehdipatnam, bursted and its driver lost control it collided with the RTC Bus on route 8C coming from the opposite direction. Immediately after the occurrence of the said accident, on 24-6-2000 the Vice-Chairman and Managing Director of the APSRTC wrote a letter to the Government i.e. the State Road Transport Authority requesting to ban the registration of the seven seater motor cabs and to cancel the fitness certificates of the existing seven seater autos and alternatively requested to restrict the seven seater autos from plying within the Hyderabad City limits with immediate effect. On receipt of the above said letter, the State Government through Memo No. 9940/Tr.II(1)/2000-2 dated 20-9-2000 requested the Transport Commisioner, Andhra Pradesh to furnish his remarks in the matter immediately. When the matter is pending consideration before the Transport, Road & Buildings Department, Government of Andhra Pradesh, the Commissioner of Police, has taken up the matter and ascertained the views of the Deputy Commissioners of Police, Traffic, of all the four zones i.e, West, East, North and South, who are directly under his administrative control, with regard to the movement of seven seater motor cabs in the twin cities of Hyderbad and Secunderabad. He has also taken into consideration the First Information Reports registered by various Police Stations in the twin cities of Hyderabad and Secunderabad, in which accidents the seven seater motor cabs are involved. Based on the opinion of the Deputy Commissioners of Police, Traffic, Hyderabad and on the basis of First Inormation Reports, the Commissioner has agreed to prohibit the movement of seven seater autos in the twin cities of Hyderabad and Secunderabad and directed to draft the impugned notification, on the lines of orders passed in Greater Mumbai by the Government of Maharashtra prohibiting the entry of auto rickshaws in Greater Mumbai.
21. I have carefully gone through the records and I have no hesitation in holding that except the suggestions made by the Deputy Commissioners of Police of the four zones and the F.I.Rs. registered against the seven seater motor cabs, involved in the accidents, there is no other material considered by the Commissioner of Police to form an opinion to prohibit the movement of seven seater motor cabs. When criminal cases are registered against the drivers of these motor cabs, the law will take its own course. Therefore, it cannot be treated as public opinion, at the most it is useful only for numerical data. Before passing the impugned order, the Commissioner of Police ought to have taken Expert Opinion from the Automobile Research Association, constituted by the Central Government, which he did not chose to do. As certified by the Automobile Research Institute, the motor cabs are stable for carrying seven passengers and if the carrying capacity exceeds seven passengers, naturally these motor cabs become unstable. Therefore, a duty is caste on the authorities to see that these motor cabs carry permitted number of passengers under the permit and not beyond the carrying capacity. Therefore, it cannot be said that these motor cabs are unstable with three wheels for carrying seven passengers. The Commissioner has also not obtained public opinion from all walks of life. Before initiating the impugned action, the Commissioner of Police has not introduced regulatory measure to regulate the movement of these motor cabs and all of a sudden without giving any opportunity to the petitioners to adhere to the regulatory measures promulgated by him. Therefore, though I cannot say that the impugned action of the Commissioner is a result of non-application of mind, but he has taken into consideration the occurrence of number of accidents occurred in the twin cities involving these motor cabs. Hence, it can be said, to some extent, as contended by the learned counsel for the petitioners, that there is no sufficient material placed before the Commissioner of Police for his subjective satisfaction to pass the impugned order prohibiting the movement of these motor cabs.
22. Now adverting to the powers of the Commissioner of Police under Section 21 of the Act, as contended by the learned Senior Counsel for the petitioners, the Commissioner of Police is only empowered to regulate the traffic in the twin cities in the interest of general public, but it does not empower him to prohibit the motor cabs or any other vehicle from plying in the twin cities of Hyderabad and Secunderabad I am not able to accede to the contention of the learned Advocate General that "Regulation" includes "Prohibition". The Concise Oxford Dictionary, Tenth Edition defines the word "Regulation" as control or maintain the rate or speed of a machine or process; control or supervise by means of rules and regulations. The word "Prohibit", in the same dictionary is defined as formally forbid by law, rule, etc., or to prevent. So from the above definitions of these two words, it is evident that the word Regulate literally denotes control or supervise by means of rules and regulations; whereas, the word prohibit gives literal meaning of formally forbid by law, rule, etc. or to prevent from a particular action. A colossal reading of these two words does not make one think that Regulation includes Prohibition.
23. The Honourable Supreme Court had an occasion to consider similar provisions under Bombay Police Act, 1951 in Himatlal's case (1973 Cri LJ 204) (SC). Section 33(1) of the Bombay Police Act, empowers the Commissioner and the District Magistrate in the areas under their respective charges or any part thereof may, alter or rescind Rules or Orders not inconsistent with the Act. Accordingly, the Commissioner framed the Rules and they were come up for Judicial interpretation. Rule 7, which deals with obtaining written permission of Commissioner of Police, Ahmedabad, or his authorised Officer to hold a meeting in the public street, came up for consideration, as it prohibits the holding of a meeting instead of regulating the holding of meeting by the citizens who have right to hold a meeting under Article 19 of the Constitution of India. The word "regulating" appearing in Section 33(1)(o) of the Bombay Police Act would include the power to prescribe the permission in writing should be taken a few days before the holding of a meeting on a public street. It held that under Section 33(1)(o) no rule could be prescribed prohibiting all meetings or processions. The section proceeds on the basis that the public has a right to hold assemblies and processions on and along Streets though it is necessary to regulate the conduct and behaviour or action of persons constituting such assemblies or processions in order to safeguard the rights of citizens and in order to preserve public order. It is further held that in India, a citizen had, before the Constitution, a right to hold meetings on public streets subject to the control of the appropriate authority regarding the time and place of the meeting and subject to the control of the appropriate authority regarding the time and place of the meeting and subject to consideration of public order and therefore, held that the impugned rules are not ultra vires the Section 33(1)(o) of the Bombay Police Act insofar as they require prior permission for holding meetings.
24. While agreeing the reasoning of the majority judgment. His Lordship Mathew, J., in his dissenting judgment held that Rule 7 is ultra vires the powers conferred under Section 33(1)(o); that the Sub-section presupposes an assembly and authorises the making of rules for "regulating" the conduct, behaviour or action of the persons who are members thereof. Rule 7 impliedly gives power to the Commissioner to refuse permission to hold a public meeting and, when a meeting is prohibited, there is no question of regulating the conduct, behaviour or action of persons constituting assembly, as ex-hypothesis, no assembly has been constituted. His Lordship further held that the Sub-section does not authorise framing of rules to regulate the conduct, behaviour or action of persons before an assembly is constituted, that a power to "regulate" does not normally include a power to "prohibit" and a power to regulate implies the continued existence of that which is to be regulated.
25. Rule 7 which was framed by the Commissioner of Police, Bombay, in exercise of the powers conferred on him under the Bombay Police Act, 1951 reads as follows :
...No public meeting with or without loudspeaker, shall be held on the public street within the jurisdiction of the Commissionerate of the Police, Ahmedabad city unless the necessary permission in writing has been obtained from the Officer authorised by the Commissioner of Police....
His Lordship Mathew, J. further observed that when the Legislature intended to give the Rule making authority, a power to frame Rules prohibiting an activity, it has taken care to do so by the appropriate word. For instance, Sub-section (p) of Section 33(1), speaks of "prohibiting the hanging or placing of any cord or pole across a street"; Sub-section (q) of Section 33(1) relates to "prohibiting...the placing of building materials...in any street". In these Sub-sections, the word "prohibit" is used to show that the rule making authority has power to pass a rule prohibiting the activities therein mentioned. Similarly, Sub-section (x) of Section 33(1) provides for "regulating" or "prohibiting" the sale of any ticket. The juxtaposition of these words is a further indication of show that the Legislature intended different connotations to the words.
26. Applying the ratio that emerges from the decision of the Supreme Court in Himat Lal's case (1973 Cri LJ 204) to the facts and circumstances of the case on hand, similar language was used in Section 21 of the Act and different connotations were given to the words "regulate" and "prohibit". When the Legislature intended to give power to regulate and prohibit the activities, which are likely to cause inconvenience, delay, danger or damage to the society at large, it has taken to do so by the appropriate words which is an indication to show that the Legislature intended different connotations to these words. For these reasons, I am unable to accede to the contention of the learned Advocate General that the word "regulate" includes the word "Prohibit". That apart, in the absence of any Rules framed by the Commissioner, to guide him, the impugned order passed by him cannot be taken as a Rule to satisfy Section 21 of the Act. Section 21 of the Hyderabad City Police Act, 1348 Fasli reads as under :
Section 21: Power to make rules for regulation of traffic and for preservation of order :
(1) The Commissioner of City Police, Hyderabad from time to time, make rules not inconsistent with this Act in respect of the following. Such rules shall, in cases of Clause s (b) and (c), be subject to the control of the Government and with regard to the remaining clauses sanction of the Government shall be obtained prior to the enforcement of rules;
(b) regulating traffic of all kinds, in public street or public places and regulating the use of streets and public places by persons walking, driving, cycling or accompanying or leading cattle, with a view to prevent danger, inconvenience or obstruction to the public.
27-28. From the reading of the above provisions of Section 21(1)(b) of the Act, it is clear that the Commissioner of Police has no power to prohibit the movement of seater seater motor cabs within the twin cities of Hyderabad and Secunderabad, but he has the power only to regulate the traffic of all kinds of motor vehicles in public street or public places and regulating the use of streets and public places by persons walking, driving, cycling or accompanying or leading cattle, with a view to prevent danger, inconvenience or obstruction to the public. It is for the Government of Andhra Pradesh and A. P. Transport Authority constituted by the Government to take appropriate action to prevent, suspend or cancel movement of transport vehicles and the permits granted to the Transport vehicles and the Commissioner of Police has no power or any manner of jurisdiction to prohibit the movement of the vehicles in the twin cities of Hyderabad and Secunderabad.
29. The learned Advocate General further submitted that taking into consideration the acceleration in the accidents by virtue of plying of these motor cabs, the Commissioner of Police has taken the decision to prohibit the movement of these motor cabs and, therefore, it is a reasonable restriction against the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India and the petitioners are not forbidden from carrying on their profession and trade in the outskirts of the twin cities or in the other parts of the State of Andhra Pradesh. Therefore, the impugned order is within the scope of Article 19 of the Constitution of India.
30. He relied on Durga Das Basu in Shorter Constitution of India, 13th Edition at 232 while dealing with the proposition whether restriction includes prohibition has stated that the question whether reasonable restriction could include total prohibition cannot be answered categorically. It depends on the nature of the mischief which the Legislature seeks to remedy. It is further stated that where a business or trade is inherently dangerous, total prohibition thereof would be reasonable, as the business of making or selling intoxicant liquors is attended with danger to the community, it may be entirely prohibited or permitted under such conditions as will limit to the utmost its evils and it is also open to the Government to charge a fee for granting an exclusively privilege of selling foreign liquor. For the same reason it would be legitimate to empower the Executive to settle this privilege in any manner at its discretion, provided it is not arbitrary. Similarly, trading in dangerous goods such as explosives or trafficking in women or toutism may be totally prohibited. But outside the above exceptional categories a total prohibition of the right to carry on a business would be regarded as an unreasonable restriction and, greater the restriction, the more the need for strict scrutiny by the Courts. In order to determine whether total prohibition would be reasonable, the Court has to balance the direct impact on the fundamental right of the citizens affected thereby against the greater public or social interest sought to be ensured.
31. Therefore, the action of the Commissioner of Police, in prohibiting the motor cabs from plying in the twin cities on the ground that they contribute high percentage in the occurrence of the accidents, cannot be said to be a reasonable restriction. The Commissioner of Police ought to have taken the total number of accidents and then calculate the proportionate rate of accidents involving these motor cabs.
32. It is true that this Court cannot substitute the views on the administration. In the case, this Court is called up on to have judicial review of the decision taken by the Commissioner of Police under Section 21 of the Act prohibiting the movement of the mini motor cabs is legal or not. As I have held based on the records, except the comments made by the Deputy Commissioners of four zones with regard to the accidents in which seven seater motor cabs are involved, the roadworthiness and stability of the vehicles used by the public and space occupied by these cabs and the First Information Reports registered. There is no other material considered by the Commissioner of Police like Expert opinion in the field of Motor Vehicles, public opinion among the persons who have knowledge in the said field. Therefore, the consideration of the above said material is not sufficient for the subjective satisfaction to form an opinion to prohibit the movement of moror cabs in the twin cities of Hyderabad and Secunderabad.
33. When the impugned action of the Commissioner of Police is infringing the rights, trade and business of the petitioners in the twin cities of Hyderabad and Secunderabad, guaranteed under Article 19 of the Constitution of India, the action of the respondents in prohibiting the motor cabs is very much prejudiced and certainly the Commissioner of Police has to observe the principles of natural justice, as held by the Supreme Court in Aligarh Muslim University v. Mansoor Alikhan . Therefore, it cannot be said that no principles of natural justice need be observed, as contended by the learned Advocate General. When the impugned action of the Commissioner of Police is causing great prejudice to the business, trade and profession of the petitioners, certainly, the Commissioner of Police has to follow the principles of natural justice. The Supreme Court in Mansoor Ali Khan's case, when the services of an employee of Muslim Aligarh University was terminated on the ground of overstay, based on the Rules, the Supreme Court held that the impugned order therein has not caused prejudice to the petitioners therein. Therefore, the question of observing the principles of natural justice does not arise, but held that when the impugned action of the respondents causes prejudice, certainly the authorities have to observe principles of natural justice. Section 21 of the Act, does not empower the Commissioner of Police to impose total prohibition of the movement of the motor vehicles in the twin cities of Hyderabad and Secunderabad.
34. It is pertinent to mention here some of the provisions of the Motor Vehicles Act, 1988 which are having bearing on the issue involved in these writ petitions, which deal with the grant of permits, prohibition of transport, suspension and cancellation of vehicles by the Government and Andhra Pradesh State Transport Authority.
35. Section 2(7) defines "Contract Carriage" to mean a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether express or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned herein and entered in to by a person with a holder of a permit in relation to such vehicle or any person authorized by him in this behalf on a fixed or an agreed rate of sum (a) on a time basis, whether or not with reference to any route or distance; or (b) from one point to another etc.
36. Section 2(40) defines "Stage Carrier" to mean a trailor drawn by a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stage of the journey.
37. Chapter V of the Motor Vehicles Act, 1988 deals with control of Transport Vehicles either by Government or Road Transport Authority. Section 66 of the M. V. Act, 1988, indicates that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used Section 67, which is an important section, deals with powers of the State Government to control road transport within the State. It says that the State Government having regard to the advantages offered to the public, trade and industry by the development of motor transport, the desirability of co-ordinating road and rail transport, the desirability of preventing uneconomic competition among holders of permits, may, from time to time, by notification in the official gazette, issue directions both to the State Transport Authority and Regional Transport Authority. Section 68 hereof describes the Constitution of Transport Authority. It says that the State Government shall, by notification in the Official Gazette, constitute for the State Transport Authority to exercise and discharge the powers and functions specified in sub-sec. (3) and shall in like manner constitute Regional Transport Authorities to exercise and discharge through out such areas (as may be specified in the notification, in respect of each Regional Transport Authority) the power and functions conferred by or under this Chapter on such Authorities. Section 69 deals with general provisions as to the applications for permits. Section 70 deals with application for stage carriage permits and Section 71 deals with the procedure of Regional Transport Authority in considering application for stage carriage permit. Section 72 hereof deals with grant of stage carriage permits while Section 73 deals with application for contract carriage permit and Section 74 prescribes grant of contract carriage permits. Section 86 of the M. V. Act, 1988 deals with the cancellation and suspension of permits. It says that the transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit, on the breach of any condition specified in Section 84 of any conditions contained in the permit Section 84 enumerates general conditions attached to all permits); if the holder of the permit ceases to own the vehicle covered by the permit, or if the holder of the permit has obtained the permit by fraud or misrepresentation or if the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purpose for which the permit was granted; or if the holder of the permit acquired the citizenship of any foreign country; provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation.
38. These are the main provisions which ideal with the grant of permits to ply their vehicles, as stage carriage or contract carriage. Both the State Government and the State Transport Authority constituted by the State Government have got the powers either to prohibit, suspend or cancel the permit, if they violate any of the conditions of the permit or if it is desirable to prevent uneconomic competition among the holders of the permits. Further it is for the State Transport Authority to give certificate with regard to the roadworthiness of the vehicle. Therefore, overall reading of Chapter V of the M. V. Act, 1988 makes it manifest that it is the jurisdiction of the State Government and the State Transport Authority to take action under Section 67 or 86 of the Motor Vehicles Act, 1988 either to prevent, suspend or 2001 Cri. L.J./153 VII cancel the permits granted to the Transport Vehicles and the Commissioner of Police has no power or any manner of jurisdiction to prohibit the movement of the vehicles in the twin cities of Hyderabad and Secunderabad, but he got the power only to regulate the traffic of all kinds, in public street or public places and regulating the use of streets and public places by persons walking, driving, cycling or accompanying or leading cattle, with a view to prevent danger, inconvenience or obstruction to the public.
39. As stated above, it is for the Government of Andhra Pradesh and A. P. State Transport Authority, under Section 86 of the Motor Vehicles Act, 1988 to take action if the permit holders violate terms and conditions of the permits granted to them for plying the vehicles i.e. to say if these motor cab owners operators pick up the passengers in excess of the seating capacity or if they halt their motor cabs in bus bays or causing obstruction in smooth flow of traffic or if they use the contract carriage as a stage carrier, or involving in more motor accidents.
40. Further, it cannot be said that the impugned proceedings were issued by the Commissioner of Police with a mala fide intention, as attributed by the petitioners, to boost up the income of the APSRTC, but it is evident that he has acted as per the advice given to him with a bona fide intention to regulate the traffic in the twin cities of Hyderabad and Secunderabad, it cannot be ruled out to boost the income of APSRTC as per records. Therefore, the impugned action is bad in law.
41. Further it cannot be said that the impugned action of the Commissioner of Police is vitiated for not following the procedure contemplate under Section 85 of the Act. Mere depart from the procedure does not vitiate the same, if it is otherwise validly passed.
42. In the case of Maharashtra, the order of prohibition of entrance of wheelers was passed by the Government and alternative steps like allowing one person up to the age of 12 years to travel in taxi was permitted, but in the present case, instead of State Government, the Commissioner of Police has passed the order for which he is not empowered to do so. Further no alternative steps were taken for the convenience of the travelling public when seven seater Motor cabs were prohibited to enter in the twin cities of Hyderabad and Secunderabad. On that ground also, the impugned order is liable to be set aside.
43. At the cost of repetition, I would like to observe, as directed by the Legislature to frame Rules for the guidance of Commissioner of Police to regulate the traffic in the twin cities of Hyderabad and Secunderabad, the Commissioner of Police should have framed the Rules as it was done in Himat Lal's case (1973 Cri LJ 204) (SC) under Section 33(1) of the Bombay Police Act. Though the Legislature directed to frame the Rules as guidance for regulation of the traffic as long back in 1348 Fasli i.e. in 1938, from 1938 to this day the Commissioner of Police has not framed the Rules which in action amounts to disobeying the directions of the Legislature to frame the Rules and thereby violated the verdict of the people for which he is accountable to the public. Taking into consideration the fact that the Rules are not framed for a long time, as directed by the legislature and as this Court cannot give a direction to the Executive to frame the Rules, I hope that this is high time for the Commissioner of Police to take immediate steps to frame the Rules as a guidance to regulate the movement of Motor Vehicles in the twin cities of Hyderabad and Secunderabad to avoid inconvenience, delay, danger and damage to the public.
44. Therefore, for the reasons stated above, I hold that the impugned proceedings issued by the Commissioner of Police dated 15-1 -2001 prohibiting the Movement of Mini Door Cabs (seven seater auto rickshaws) within the twin cities of Hyderabad and Secunderabad is liable to be set aside on the ground of exercising his powers outside the scope of Section 21(1)(b) of the Act and is accordingly set aside. This Court thought it fit and proper to meet the ends of justice by directing the State Government to take the above stated facts into consideration and take appropriate action as per the provisions of the Motor Vehicles Act, 1988 to regulate the traffic and for maintenance of safe and free flow of traffic, prevention of danger, obstruction and inconvenience to the public in the twin cities of Hyderabad and Secunderabad, as expeditiously as possible.
45. With the above directions, the writ petitions are accordingly disposed of. No costs.